Open Records Decision No. 515
December 30, 1988
Re: Whether the "informer's privilege" aspect of section 3(a)(1) of the Texas
Open Records Act, article 6252-17a, V.T.C.S., applies when no violation of the law is
alleged. (RQ-1448)
Mr. Richard A. Peebles
Reid, Strickland and Gillette
407 Citizens Bank Tower
P.O. Box 809
Baytown, Texas 77522-0809
Dear Mr. Peebles:
The Lee College District of Baytown, Texas, received an open records request
from a college employee for "everything in my personnel file." The district released to
the employee a copy of all items in his personnel file except for certain memoranda and
written statements of complaints regarding the employee's conduct with fellow workers,
particularly with regard to his supervision of two specific employees. You asked this
office whether subsections 3(a)(1) and (3) of the Open Records Act, article 6252-17a,
V.T.C.S., except this information from required public disclosure. This office responded
by issuing an informal open records ruling, OR88-007, which held 1) that you failed to
show how the material met the tests for section 3(a)(3) protection and 2) that the
informer's privilege aspect of section 3(a)(1) does not protect the statements and
memoranda because they contained no report of a violation of a law.
You subsequently asked this office to reconsider that ruling, in light of a prior
informal open records ruling from this office to the district, dated September 8, 1987,
that held that the informer's privilege protected similar statements. After reexamining the
purpose of the privilege, this office concludes that the September 8 letter ruling
improperly extended the scope of the privilege and that OR88-007 correctly recognized
that the informer's privilege does not apply to the memoranda and statements at issue
here.
Section 3(a)(1) of the act protects "information deemed confidential by law,
either Constitutional, statutory, or by judicial decision." Section 3(a)(1) includes
information protected by the informer's privilege. See Open Records Decision No. 434
(1986). The United States Supreme Court explained the rationale underlying this
privilege in Roviaro v. United States, 353 U.S. 53, 59 (1957):
What is usually referred to as the informer's privilege is in reality
the Government's privilege to withhold from disclosure the identity
of persons who furnish information of violations of law to officers
charged with enforcement of that law. . . . The purpose of the
privilege is the furtherance and protection of the public interest in
effective law enforcement. The privilege recognizes the obligation
of citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their
anonymity, encourages them to perform that obligation. (Citations
omitted, emphasis added.)
The Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence,
however, share a somewhat broader definition of a protected informer as "a person who
has furnished information relating to or assisting in an investigation of a possible
violation of a law to a law enforcement officer or member of a legislative committee or
its staff conducting an investigation." See Tex. R. Crim. Evid. 508; Tex. R. Civ. Evid.
508 (emphasis added). The language of these rules indicates that the informer's privilege
protects not only the identities of those persons who actually report a known violation of
the law, but also the identities of those who merely cooperate in law-enforcement
investigations. The privilege also protects the statements of informers to the extent that
the statements tend to reveal the informers' identities. See Open Records Decision No.
320 (1982).
Nor does the informer's privilege aspect of section 3(a)(1) pertain only to those
individuals who make reports to the police or similar law-enforcement agencies. This
office has held that the informer's privilege aspect of section 3(a)(1) also applies when
the informer reports violations of statutes with civil or criminal penalties to
"administrative officials having a duty of inspection or of law enforcement within their
particular spheres." Open Records Decision No. 279 (1981) at 2 (citing Wigmore,
Evidence, § 2374, at 767 (McNaughton rev. ed. 1961)). The Attorney General has
previously held that the privilege protects the identities of persons who:
(1) made complaints regarding air pollution to the Texas Air
Control Board, Open Records Decision No. 391 (1983);
(2) made complaints regarding licensing violations of a particular
nursing home to Texas Department of Human Resources, Open
Records Decision No. 376 (1983);
(3) reported zoning ordinance violations to city officials, Open
Records Decision No. 279 (1981);
(4) informed the Texas Board of Private Investigators and Private
Security Investigators and Private Security Agencies about an
unlicensed person acting as a private investigator, Open
Records
Decision No. 183 (1978);
(5) reported child-care violations to the Department of Public
Welfare, Open Records Decision No. 176 (1977); and
(6) reported a case of animal neglect to a city's animal control
division. Open Records Decision No. 156 (1977).
On the other hand, this office has held that the privilege does not protect the
identities of individuals who report activities falling outside the realm of criminal or
quasi-criminal law enforcement. For example, Open Records Decision No. 218 (1978),
determined that the privilege does not protect the identities of persons who complained to
a county commissioner about the actions of a county employee. The opinion noted that
no criminal conduct had been reported and that the "tone of each letter, when coupled
with the consideration that each is addressed to a county commissioner rather than to the
appropriate law enforcement official, indicates that the complainants expected
administrative redress rather than criminal prosecution." Open Records Decision No.
218 (1978) at 2.
Similarly, Open Records Decision No. 191 (1978) held that the privilege does not
protect the identities of two female employees who made allegations of sexual
harassment in the workplace, naming fellow employees as the offenders. Although an
act of sexual discrimination may subject an individual to civil liability, the Attorney
General held that the complaining employees' grievances and statements did not disclose
the violation of any statute; consequently, the complainants' identities could not be
withheld pursuant to the informer's privilege aspect of section 3(a)(1).
The September 8, 1987, informal open records ruling from this office addressed
statements of complaints similar to those at issue here and concluded that the informer's
privilege aspect of section 3(a)(1) protected the statements from required disclosure.
That ruling relied heavily on the decision in Evans v. Dep't of Transp. of the United
States, 446 F.2d 821 (5th Cir. 1971) cert. denied, 405 U.S. 918 (1972). The court in
Evans upheld the Federal Aviation Administration's refusal to release a letter that
charged an airplane pilot with acts indicative of behavior disorder and mental
abnormality because the letter contained information that revealed the writer's identity.
The court observed that, if the information were released to the pilot:
few individuals, if any, would come forth to embroil themselves in
controversy or possible recrimination by notifying the Federal
Aviation Agency of something which might justify investigation.
Evans, 446 F.2d at 824.
The rationale for the court's decision in Evans, however, does not apply here.
The allegations about the pilot, which resulted in a formal administrative investigation
and hearing, were brought before a federal administrative agency having the statutory
duty to enforce regulations governing the airline industry. In Evans, the court held that
the letters containing the allegations came under the protection of two federal statutes:
first, 5 United States Code section 552(b)(7)(D), which protects "records or information
compiled for law enforcement purposes, but only to the extent that the production of such
law enforcement records or information . . . could reasonably be expected to disclose the
identity of a confidential source," (emphasis added), and second, 49 United States Code
section 1504, which grants the Board or Administrator of the agency discretion in
releasing information contained in any report or document filed in relation to the
enforcement of regulations governing the commercial airline industry. No similar
statutes apply here, where the "informers" reported no violation of a criminal or civil
statute or other law enforceable by the college district.
The September 8, 1987, letter ruling relies on Wigmore to assert that the
informer's privilege applies not only to law enforcement officers, but also to the college
district's personnel supervisors as "administrative officials having a duty of inspection
. . . within their respective spheres." Reading Wigmore in context, however, sheds a
better light on the scope of the privilege:
The privilege applies to communications to such officers only
as have a responsibility or duty to investigate or to prevent public
wrongs, and not to officials in general. This ordinarily signifies the
police and officials of criminal justice generally. But it may also
include administrative officials having a duty of inspection or of law
enforcement in their particular spheres. The truth is that the
principle is a large and flexible one. It applies wherever the
situation is one where without this encouragement the citizens who
have special information of a violation of law might be deterred
otherwise from voluntarily reporting it to the appropriate official.
(Emphasis added; emphasis in original deleted.)
Wigmore, Evidence, § 2374, at 767 (McNaughton rev. ed. 1961). There is no notation in
Wigmore providing for the expansion of the privilege's protection to the type of
information in question here.
Moreover, the basis for the informer's privilege is to protect informers from
retaliation and thus encourage them to cooperate with law enforcement efforts. The
statements at issue here consist of complaints about a public employee's behavior in
supervising two specific employees and in generally failing to cooperate with fellow
workers. Although the employees apparently seek some form of redress from their
employer for their complaints, this is not the kind of information protected by the
informer's privilege aspect of section 3(a)(1). See Open Records Decision Nos. 218, 191.
These persons have not reported violations of law or suspected violations of the law to
officials charged with enforcing specific laws. Section 14(d) of the Open Records Act
requires that the "Act shall be liberally construed in favor of the granting of any request
for information." The act's exceptions must be construed narrowly; this office is not at
liberty to expand the act's exceptions. Open Records Decision No. 488 (1988). The
informal open records ruling of September 8, 1987, therefore, is expressly overruled.
Finally, in your letter requesting reconsideration of decision OR88-007, you raise
additional grounds for withholding the memoranda at issue. You claim that sections
3(a)(7) and 3(a)(11) apply to the memoranda. Governmental bodies bear the burden of
showing which exceptions apply to specific information and why. Attorney General
Opinion H-436 (1974); Open Records Decision No. 252 (1980). Section 7(a) of the act
requires a governmental body to release requested information or to request a decision
from the attorney general within 10 days of receiving a request for information the
governmental body wishes to withhold. In placing a time limit on the production of
public information, the legislature recognized the value of timely production of public
information. See also V.T.C.S. art. 6252-17a, § 4 (shall "promptly" produce public
information), § 13 (may promulgate rules to ensure that "public records may be inspected
efficiently, safely, and without delay"). To allow governmental bodies to raise additional
arguments against disclosure, especially when requesting reconsideration of prior
decisions, would allow them to delay releasing public information indefinitely.
When a governmental body fails to request a decision within 10 days of receiving
a request for information, the information at issue is presumed public. City of Houston
v. Houston Chronicle Pub. Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.]
1984, no writ); Open Records Decision No. 319 (1982). The governmental body must
show a compelling interest in withholding the information to overcome this presumption.
Open Records Decision No. 319. For this reason, a governmental body must show
compelling reasons why this office should consider additional arguments, raised long
after 10 days have elapsed, for withholding requested information. You have not shown
compelling reasons why this office should consider sections 3(a)(11) and 3(a)(7), nor
have you shown compelling reasons why the statements at issue here should not be
released. Consequently, this decision does not address your arguments regarding sections
3(a)(11) and 3(a)(7).
SUMMARY
The informer's privilege aspect of section 3(a)(1) of the Texas
Open Records Act, article 6252-17a, V.T.C.S., does not protect
memoranda and written statements complaining of a public
employee's work performance with fellow workers when those
statements do not reveal crimes or the violation of specific laws to
the officials charged with enforcing those laws.
When a governmental body seeks reconsideration of a decision
of the attorney general the governmental body cannot raise
exceptions not raised in its initial request without showing
compelling reasons for withholding the information and for raising
additional exceptions.
Very truly yours,
Jim Mattox
Attorney General of Texas
Mary Keller
First Assistant Attorney General
Lou McCreary
Executive Assistant Attorney General
Judge Zollie Steakley
Special Assistant Attorney General
Rick Gilpin
Chairman, Opinion Committee
Jennifer S. Riggs
Chief, Open Government Section
of the Opinion Committee
Prepared by Jennifer S. Riggs
Assistant Attorney General